Dispute Settlement in International Space Law Prof. Stefano Saluzzo University of Piemonte Orientale 1
Outline 1. The notion of spce related disputes 2. IDS in international law 3. Why dispute settlement in ISL? 4. The existing framework 5. Obstacles in space related disputes 6. PCA Optional Rules 7. An International Tribunal for Space Law? 2
Notion of space related disputes “A disagreement on a point of law or fact, a conflict of legal views or of interests ” (PCIJ, Mavrommatis ) Space related disputes: • Accidents occurring in space • Events on Earth • Breach of contract? Concept broader than treaty obligations 3
IDS in international law UN Ch, art. 33: “The parties to any dispute [ … ] shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice ” • Diplomatic means • Arbitral/judicial proceedings 4
IDS in international law • Diplomatic means: – Non-binding – No procedural rules • Arbitral/judicial proceedings – Binding on the basis of consent – Compulsory jurisdiction (ICJ, ITLOS) 5
Why dispute Why settlement in ISL? Traditional rationale of IDS to prevent WARS Rationale of IDS in space law? to prevent 6
Why dispute settlement in ISL? Modern conception of IDS – stable international relationships – legal certainty for public/private activities – development of legal framework Technical nature of disputes Private parties’ interests 7
The existing framework 1967 Outer Space Treaty (OST) Art. IX: If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer [ … ] would cause potentially harmful interference with space activities of other States Parties in the peaceful exploration and [ … ] use of outer space it shall undertake appropriate international consultations before proceeding with any such activity or experiment. 8
The existing framework 1967 OST 1. Only diplomatic (non-binding) means 2. Purely preventive nature Art. III: Parties shall carry out activities in accordance with international law, including the UN Charter 9
The existing framework 1973 Liability Convention Non-compulsory procedures: Art. IX: claims through diplomatic channels Art. XIV: Claims Commission Private parties? 10
The existing framework Alternative DS mechanisms: 1. International Court of Justice 2. Ad hoc arbitration 3. Claims before national courts 11
The existing framework International Court of Justice • Unilateral claim for OST and LC 23 States • No access for private parties • Exceptions and reservations 12
Obstacle in space related disputes Confidential nature of States ’ space activities 1. Procedure disclosure of evidence ( Corfu Channel Case) 2. Substance essential security interests 13
Obstacle in space related disputes Immunity of States (claims at national level) • From foreign jurisdiction • From enforcement of judgments 14
Obstacle in space related disputes Private parties • No access to international courts • International commercial arbitration (UNCITRAL) 15
PCA Optional Rules 2011 PCA Optional Rules for Arbitration of Disputes Relating to Outer Space Activities • The need for a flexibile international arbitration • Drafting based on UNCITRAL rules • Previous rules of the PCA (International organizations, private parties, natural resources and environment) 16
PCA Optional Rules • Nature : not a new IDS mechanism • Optional character : parties agree to submit a dispute to arbitration under the Rules (compromissory clauses in treaties, contracts … ) • Autonomy of the parties • Final and binding award 17
PCA Optional Rules Applicability – All actors involved in “commercial” space activities – “the characterisation of the dispute as relating to outer space is not a necessary pre-condition for the settlement of such dispute under the Rules ” (art. 1 OR) » “ any rule, decision, agreement, contract, convention, treaty, constituent instrument of an organization or agency, or relationship out of, or in relation to which, the dispute arises ” 18
PCA Optional Rules • Confidentiality : “ confidentiality adviser ” (no absolute exception) • Immunity : consent to arbitration waiver of immunity • Avoidance of unnecessary delays • Applicable law Choice of parties International and national rules deemed appropriate 19
PCA Optional Rules Scientific and legal expertise – List of arbitrators with expertise in space- related matters – List of experts to support arbitrators in the decision 20
PCA Optional Rules Evaluation – Flexible and neutral mechanism – Broad applicability – Address obstacles of space-related disputes – Binding decision – Indipendent right of action for private parties » No mandatory IDS 21
International Tribunal for Space Law? 1978 ILA Draft Convention on Settlement of Outer Space Disputes • Art. 37: “International Tribunal for Space Law” • Based on ITLOS model • Several exceptions and reservations allowed 22
International Tribunal for Space Law? Multi-door courthouse for space related disputes • DS ranging from arbitration to adjudication • Experts screening (facts and features of the dispute) • Determination of the mode of DS 23
International Tribunal for Space Law? Multi-door courthouse for space related disputes • Highly institutionalised mechanism • Less flexibility for parties autonomy • Ensure uniform interpretation and development of international space law 24
QUESTIONS 25
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